FAA Issues Final Rules On Operation Over People and Remote Identification

The hoverlaw blog has been dormant for a while.  But we are back!  When we last posted, the FAA had issued notices of proposed rulemaking regarding remote identification of unmanned aircraft systems (UAS) and UAS operation over people.  As of January 15, 2021, the two rules are now finalized.  The Operation Over People Rule is here and the Remote ID Rule is here.  In addition, the FAA has helpful information on its website: Operating over People and Remote ID Information.  These new rules are each significant developments in drone law. 

Operation over People

The final rule allows routine operations over people and at night depending on which newly defined Category a drone is in.  These categories depend on the weight of the drone and the potential for causing injury if dropped on a person.  Here are some details about those categories.  In addition, the new Rule requires that any drone flown over people must comply with the Remote ID Rule.  Finally, the new Rule allows operation over moving vehicles.

Operation at Night

Anyone operating a drone at night must complete specific training or pass a test.  Additionally, any drone flown at night must have installed anti-collision lighting.

Remote Identification

Most drones must now include built in (or in some limited instances external retrofit) ID capability that will automatically broadcast information about drones in flight, such as the identity, location, and altitude of the drone and its control station or take-off location.  Authorized individuals from public safety organizations may request identity of the drone’s owner from the FAA.  A “community-based organization” or some educational institutions may operate a drone without remote ID capability but only in a special area identified by the FAA as safe for operation without broadcasting remote ID message elements.

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Remote Identification: The FAA Proposed Rule and Privacy

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking and promised that we would be blogging on the impacts of the proposed new rule. This is the fourth in a series of postings about the significance of the proposed new rule.

As of February 1, there have been over 8,000 comments to the proposed rule—the comment period closes on March 2, 2020. Many comments have focused on privacy and of those, there are two distinct areas of concern.  First is the concern as to the use of the new remote identification information by law enforcement. Second is the broader concern, voiced by hobbyists and other non-industry users, that operator location will become public knowledge.

Understanding this concern, and assessing its legitimacy, requires understanding a part of the proposed rule that is, at best, opaque. As drafted, the rule will require drones, with some exceptions, not only to broadcast remote identification information via radio frequency, but also to connect via the internet (when internet service is available) to a website approved by the FAA—referred to as a “UAS Service Suppler” or “USS.” There are many unanswered privacy-related questions about the USS. Will it be hosted by a private entity?  How will law enforcement access the website?  Will the USS operator distribute information to the public? Will each drone manufacturer host its own separate USS, providing information about its drones only, or will there be a single USS linked to all drones in operation? Who will pay for the USS and will that cost be passed on to those who access the website for compliance or law enforcement purposes? We expect many of these questions to be answered during the rulemaking process. 

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Remote Identification: What’s Next for Local Government Owners/Operators of Critical Infrastructure?

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking and promised that we would be blogging on the impacts of the proposed new rule.  This is the third of a series of postings as to the significance of the proposed new rule.

Imagine you are the General Manager of a water district.  For weeks, there has been a drone buzzing over a dam and hydro-electric generation facility under your control.  You don’t know who is operating the drone or what the purpose of the flight is. Or imagine you are a Fire Chief whose safety operations have consistently been interrupted by drones operated from unknown locations. You know there are technologies available to identify drones and take them down, but your lawyer has been reading this blog and tells you that most are probably illegal.

Enter the remote identification rulemaking.

With remote identification, drones themselves will make it easier for effective use of the kinds of passive detection methods that do not raise legal issues. The first step in regulating drone use is to know who is using the drone and from where. The remote identification rulemaking will make this first step possible. But important enforcement questions remain. The remote identification rulemaking needs clarification as to how local government can access and use the remote identification information broadcast or transmitted by the drone. More important, federal preemption issues remain unclear, making it difficult for a local agency to enact drone regulations that it can enforce. 

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Remote Identification: First Step in Expanded Drone Operations?

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking and promised that we would be blogging on the impacts of the proposed new rule.  This is the second of a series of postings as to the significance of the proposed new rule.

There are undeniable potential benefits of drones. They can deliver critical medicine to remote areas as easily as they can deliver a package to a front door. They can improve worker safety by conducting inspections in areas where it would be dangerous for a human to go. However, drone operations often face impossible hurdles in the form of FAA regulations that do not contemplate creative and unintended positive uses of drones. The enforcement challenges that necessitate the remote identification rulemaking also functioned as barriers to expanded drone operations. 

Enter the remote identification rulemaking. 

The proposed rule gives regulators access to critical information about the location of drones and their operators. This, in turn, will help to address key safety and security concerns underlying the present prohibition against operating at night or outside the operator’s line of sight.

The FAA has already indicated that it anticipates the remote identification rule will “assist in the implementation of operations of small UAS over people and at night.” In fact, the FAA’s proposed rulemaking on the Operation of Unmanned Aircraft Systems Over People (issued in February of 2019) explicitly stated that the FAA intended to finalize its policy on remote identification prior to completing the rulemaking for flight over people and at night. The FAA also expects that the information provided pursuant to the remote identification rule will facilitate the technologies necessary for operation of a drone beyond the operator’s visual line of sight.

In short, we should anticipate that the final remote identification rulemaking will be the foundation for future expanded drone operations.

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Remote Identification: Why is the FAA’s Rulemaking a Potential Game Changer?

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking, and promised that we would be blogging on the impacts of the proposed new rule.  This is the first of a series of postings as to the significance of the proposed new rule.

The proposed remote identification rulemaking is intended to give the FAA and law enforcement much-needed tools to address unsafe or prohibited drone operations.  The key issue here is: While there may already be some laws and regulations on the books targeting unsafe drone operations, the nature of drones themselves makes these laws and regulations very difficult to enforce.  Enforcement issues have been frustrating law enforcement and lawmakers alike.

The majority of drones are small, fast, and can fly a significant distance from the operator.  This means that, even if a drone is properly identified with the required registration markings, it can be impossible to link a drone with its operator in order to hold an individual accountable for the operation of his or her drone.  When it comes to enforcement of regulations or local laws and ordinances, these factors present a serious challenge. 

Enter the remote identification rulemaking.

The proposed rule requires most drones to broadcast or transmit important identifying information including: the drone’s ID information (serial number or session ID), latitude, longitude, and barometric pressure altitude of both the drone and the operator—the “control station.”   If the proposed rule is adopted, the FAA and law enforcement agencies would have near real-time access to information critical for at least two reasons.  First, law enforcement will have a new tool to distinguish between compliant and non-compliant operations, which may be helpful in determining whether a drone poses a security risk.  Second, and as important, the remote identification information will allow for those enforcing drone regulations to contact a person operating a drone in violation of the law.

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New Year: New Rulemaking

In one of the FAA’s final acts to close out 2019, it issued the long-awaited Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking. This rulemaking is the first step in giving the FAA and law enforcement the tools to identify drones in flight and the location of the drone’s control station. The proposed rule creates three categories of drones, each with different remote identification requirements. 

Standard Remote Identification UAS would be required to transmit certain information via the internet to an FAA authorized third party and to broadcast the same information directly using radio frequency spectrum. 

Limited Remote Identification UAS would be required to transmit certain information via the internet to an FAA authorized third party and such UAS would be operationally limited to flight within 400 feet of its control station. Operators of a Limited Remote Identification UAS would be required to keep the UAS within visual line of sight.

UAS Without Remote Identification, including all UAS purchased before the date of the rulemaking and which cannot be brought into compliance or amateur built UAS, could only be operated within the visual line of sight of the operator and within an FAA-recognized identification area or with authorization by the Administrator for specific purposes.

This rulemaking may mark the beginning of a seismic shift in UAS operations. The FAA has stated that this rulemaking will be the foundation for new technologies that will allow for expanded operations.

We will be discussing the significance of this proposed rulemaking in a series of posts,  addressing issues such as:

Why is this rulemaking needed?     

What does this rulemaking mean for expanded operation and other important rulemakings?

What does this rulemaking mean for local governments, owners/operators of critical infrastructure, and law enforcement?

What impact does this rulemaking have on privacy rights?

Stay tuned!

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Why Didn’t Amazon Deliver My New Shoes Using a Drone?

It seems like forever since we first started expecting the explosion of drone delivery service. Three years ago, Amazon proudly announced Prime Air. Just last week, the Los Angeles Times published an article announcing Google’s entry into the drone delivery business.

So what is taking so long?  There are a number of legal reasons. 

First, an entity seeking to use drones for delivery needs to comply with FAA regulations. Without an exemption, some of these regulations become impossible hurdles. For example, the drone must at all times be under the control of a pilot—autonomous drones are impermissible. Also, the drone must be flown within the line of sight of the pilot in command. Finally, drones can’t be flown near airports, or at night, or over a person, or a moving vehicle or… The list goes on and on such that there are significant hurdles for anyone seeking to deliver anything using a drone—in particular in highly populated urban areas.

Second, until there is clarity as to whether FAA rules preempt the field of drone regulations,  there is a host of State and local regulations with which a drone delivery service must either comply or calculate the risk of non-compliance.  This risk is likely too high to allow for commencement of large scale drone delivery service.

Finally, despite the explosion of the industry, the average person is likely concerned about privacy and nuisance issues that need resolution before the general public will accept drone delivery.  This may not be a legal issue for the person receiving goods via drone—presumably, that person will have agreed to a drone landing in her front yard.  But the recipient is not the only person potentially impacted by drone delivery services.

So take the news of tomorrow’s burrito delivery with a grain of salsa.

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Further Delay of the FAA’s Remote Identification Rulemaking

A fundamental and practical problem in regulating drone use is that the operator is remote from the drone. If a drone operator is violating Federal regulations, it is difficult if not impossible to locate the person flying the drone and hold them accountable. One potential solution is to require a drone to broadcast its identifying information to assist law enforcement and the FAA in enforcement activities. This is known as “remote identification.” 

In its August 2019 Significant Rulemakings Report, the FAA indicated that it will further delay its long-awaited Remote Identification of Unmanned Aircraft Systems Rulemaking to December of 2019. 

According to the FAA, the rulemaking “would implement system(s) for the remote identification of certain unmanned aircraft systems. The remote identification of unmanned aircraft systems in the national airspace system would further address security and law enforcement concerns regarding the further integration of these aircraft into the national airspace while also enabling greater operational capabilities by these same aircraft.”

This delay may also implicate other important FAA rulemakings.  In the February 13, 2019 Notice of Proposed Rulemaking regarding the Operation of Small Unmanned Aircraft Systems Over People, the FAA noted that it intended to finalize its policy regarding remote identification of small UAS before finalizing the rulemaking addressing flight over people.

This news is also bound to irk Washington lawmakers who, in July of 2019, wrote a letter to Secretary Chao, Acting Administrator Elwell, and Acting Director Vought register their concern at the delay in issuing the remote identification rulemaking. Lawmakers noted the “failure to complete this effort poses serious risks to the National Airspace System, its users, and the Nation’s most critical and sensitive facilities and assets.” 

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Anti-Drone Technologies

A drone flies over a water tank (or a bridge,  a power plant, a baseball stadium, an airport…the possibilities are endless). Even assuming that the local government agency with jurisdiction over the water tank has restricted drone flight, how is it to enforce such a restriction? An agency seeking to enforce its drone restrictions could shoot down the drone—or employ a technological solution to capture, disable, or destroy the drone.  But otherwise, it is close to helpless if it cannot locate the operator of a drone.  Anti-drone detection technologies offer a possible solution to this enforcement problem. Like so many legal issues regarding drone technologies, the legal landscape is unclear as to what anti-drone solutions are legal. 

Airspace is a company selling interesting anti-drone technologies—including the two main methods of enforcing drone regulations—Detection and “Mitigation,” meaning capture and removal of drones. These technologies raise interesting legal issues. There are both federal and state laws on the books that, while not originally intended to apply to drones, create a difficult set of obstacles for any agency seeking to implement an anti-drone strategy.

On one end of the spectrum are mitigation methods by which a drone is controlled, disabled, or destroyed. See 1:47-2:02 of this video for a tried-and-true mitigation method involving raptors. Airspace is marketing a higher-tech mitigation technology—see this video for Airspace’s simulation. The problem with mitigation techniques is that they are almost certainly illegal. 

Drones are considered a type of aircraft. Title 18 of the United States Code provides that “[w]hoever willfully sets fire to, damages, destroys, disables, or wrecks any aircraft . . . shall be fined under this title or imprisoned not more than twenty years, or both. (18 U.S.C. § 32). 18 USC 32 is not the only potential federal statutory impediment to anti-drone mitigation efforts—all of the federal prohibitions discussed below with regard to active detection, also would prohibit mitigating drone flight. Mitigation methods also present legal risks under State law, for conversion or other tort theories, that could open the door to a civil action by the drone owner whose drone was captured. 

At the other end of the spectrum are detection methods.  These methods, when completely passive, likely do not implicate any of the legal issues applicable to mitigation methods. For example, Airspace offers a solution that it claims integrates “sensor correlation, targeted visual display, and communication alerts” to detect drone activity. It is hard to tell from its video whether Airspace’s technology is truly passive. As soon as a detection technique involves more active efforts, legal issues start to appear. For example, pinging a drone to determine its location may be an illegal interference with satellite GPS systems in violation of 18 U.S.C. § 1367.  Federal law also generally prohibits computer hacking, including intentionally accessing a computer without authorization if, by doing so, an individual obtains information from any protected computer. (see 18 U.S.C. § 1030(a)(2)(C))

Just as with the development of drones a few years ago, anti-drone technology is also developing faster than the law can keep up. Those interested in this evolving area should check out a recent FAQ from the Federal Aviation Administration concerning drone detection systems—in particular #s 5 and 6.  The FAA emphasizes the risks of drones—in particular at airports. But it cautiously emphasizes that only statutorily permitted federal agencies may implement most anti-drone technologies.  Local agencies are still waiting.

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FAA Reauthorization Bill Includes Battling Drone Amendments

The U.S. House of Representatives announced, at the end of last month, passage of the 2018 FAA Reauthorization Act by an overwhelming majority: 393 to 13. The Act includes a host of provisions relevant to the drone industry and in particular opens the door to an easier future for drone delivery programs.

Lost in much of the publicity surrounding this admittedly important legislative action is an issue of key importance to government agencies and operators of critical infrastructure who are increasingly concerned about safety and security issues presented by drone use. This issue concerns the distinction between commercial and recreational use and the extent to which local government may regulate drone use without regard to the character of such use. For example, a drone flying over a crowded toll plaza during rush hour may cause safety and security problems regardless of whether the drone is flown commercially or recreationally.

The law has always been, and remains unclear on the ability to regulate recreational drone use. The Reauthorization Act may not help. Two amendments to the House bill—both adopted—address the distinction between recreational and commercial use.  But the two amendments may be in conflict with each other and, if both are included in the final Bill, could cause legal headaches.

The amendments are by Congressmen DeFazio and Sanford.  Without getting too far into the details, they take different approaches as to the FAA’s authority to regulate “model aircraft”—which arguably already includes recreational drones.  The DeFazio amendment would more overtly bring such recreational drone use within the ambit of FAA jurisdiction while the Sanford amendment likely will make it more difficult to regulate recreational use.

It will be important to monitor whether and how this issue is reflected in any final bill.

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New Test Site for Drone Delivery in San Diego

The US Department of Transportation released the list of sites to test drone delivery and nighttime flight—part of the Trump administration’s express goal of promoting a variety of commercial operations for drones that are currently barred by FAA Rules. San Diego is one of ten sites chosen across the country—the only in California—and will focus its testing on the critical area of improved drone identification and tracking systems. While San Diego plans on testing in the area of border security, developing this technology will be of particular importance to all local government, and operators of critical infrastructure, who are essentially ignored by the present state of drone law and are unable to distinguish between harmless recreational use, and drone use that threatens the safety and security of both people and infrastructure.

While the specifics of the new program are not yet explicit, in my view, the importance of this action by the Trump Administration is that it represents a no-going-back moment in the eventual widespread use of drones for the delivery of goods.

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Drone Registration Requirements Reinstated

Included in the Fiscal Year 2018 authorization bill for the Department of Defense is a provision restoring the Federal Aviation Administration’s (FAA) authority to require registration of all drones—both commercial and recreational.

The registration scheme, implemented originally at the end of 2016, encountered some turbulence when a federal court determined in May, 2017 that the FAA didn’t have the authority to require registration. Once the new DoD authorization measure is signed by the President, the original registration requirements are restored.

Even after the May court action, the FAA continued to maintain the registry, so this action may have little practical effect. It may allow for more enforcement of the registration requirement, although the FAA’s emphasis to date has been on education and not penalties.

The registration rule has the support of the drone industry, whose support appears to be essential to any new law or regulation concerning drone operation.

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Federal Case Declares Local Drone Ordinance Illegal

As we have previously posted, Senator Feinstein has proposed a bill that would clarify a key legal issue that has stirred up controversy among drone-law practitioners—namely the extent to which FAA regulations preempt efforts by local government to regulate drone use. Senator Feinstein’s measure would free up local government to regulate drone use so long as such regulations did not interfere with the safety and efficiency of the national air-space system. Without this bill, there is a reasonable argument that any and all local safety regulations are preempted.

The need for legislative clarity has now become more significant. For the first time, a federal district court has ruled that the FAA’s jurisdiction over drones has broad preemptive effect on local regulations under the theory of Conflict Preemption, about which we have previously blogged. In Singer v. City of Newton, a federal judge has now struck down a Newton, Massachusetts ordinance that, among other things, required registration of all drones and prohibited flight less than 400 feet above private and City property (under FAA regulations drones may only fly less than 400 feet above the ground). The City argued that such requirements were within its powers to protect the privacy interests of its residents.  But the court ruled that these two provisions in particular impermissibly conflicted with the FAA’s preemptive authority to integrate drones into the national airspace. You can find the opinion here. The judge’s ruling is of course not the last word as the City could appeal, or could modify its ordinance to comply with the court’s ruling.

At a minimum, this case should give local government pause before regulating drone use in their municipalities.

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Proposed Federal Drone Laws Aired

After some time without any legislative action, two pieces of federal legislation are being floated. Most recently, on June 23, 2017 Senator Mark Warner (D-VA) introduced legislation that, in addition to providing modest funding for a number of drone-related initiatives, would essentially overturn the recent court decision that held the FAA exceeded its statutory authority when it required all recreational drone users to register their drones on an FAA website. The Warner legislation would allow for such registration activities to continue. You can find the text of the proposed legislation here.

Last month, Senator Feinstein floated a bill that would help clarify a key ambiguity in the state of Drone Law—namely the extent to which FAA regulations preempt state and local government from regulating drone use within their jurisdictions. While the FAA would continue to be able to propound regulations with preemptive effect over the safety and efficiency of the national air-space system, regulations would not preempt State or local government from regulating drone use to protect public safety, personal privacy, and property rights, as well as manage land use and restrict nuisance and noise pollution. If signed into law, this measure would make it much simpler for local government to regulate drone use, as well as make positive uses of drones for a host of governmental purposes. You can find the text of the proposed legislation here

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FAA Rule in Effect: Waiver and Testing Process Online at FAA Website

As of August 29, 2016 the FAA’s new rule on small unmanned aircraft systems (ie drones) rule is in effect.  The specific requirements of new Part 107 of Title 14 of the Code of Federal Regulations are well known by now.  It will be interesting to see how quickly the FAA acts on its new online waiver process for those who seek to operate outside of the Part 107 framework.

Also of interest is the requirement that in order to fly a drone legally for commercial purposes, the operator must pass a test at an FAA-approved facility and pass a background check in order to get a “remote pilot airman” certificate.  This is not an easy test—I certainly would fail without considerable preparation.  A sample question is:

(Refer to FAA-CT-8080-2G, Figure 59, area 2.) The chart shows a gray line with “VR1667, VR1617, VR1638, and VR1668.” Could this area present a hazard to the operations of a small UA?
A. No, all operations will be above 400 feet.
B. Yes, this is a Military Training Route from 1,500 feet AGL.
C. Yes, the defined route provides traffic separation to manned aircraft.

Already, a number of business have sprung up offering to help with the certification process—many with websites that try and look like official government websites.  Anyone wanting to (continue) to operate a drone for commercial purposes will have to pass the FAA’s test.  It is important to note that the certification is only required for commercial operation, not recreational. 

This distinction between recreational and commercial use will continue to be a murky one.  Certainly, for local government seeking to regulate drone use, it makes no difference, for instance, whether the drone interfering with firefighting  operations is being flown for commercial or recreational use.  Similarly, owners and operators or critical infrastructure do not care about the purpose for drone flight that poses a potential security and safety risk.

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FAA Finalizes Commercial Drone Rule

The Federal Aviation Administration on Tuesday finalized its long-awaited rule on commercial drones. The final rule limits operation to daylight hours below 400 feet and within the line of sight of the operator, and requires operator certification every two years. The rule places a limit on the weight of the drone plus any payload of 55 pounds. There are a host of additional restrictions, many of them waivable by the FAA under specific circumstances. The new rule will be effective this August (2016).

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Local Drone Regulations and Possible Federal Preemption

As we have written before, State and local agencies are not waiting for the federal government to address issues of local concern regarding consumer and recreational drone use. For instance, the Golden Gate Bridge, Highway and Transportation District today posted a notice prohibiting operation of drones near the Golden Gate Bridge.

GGB Drone Notice

Such local action raises legal issues concerning preemption by the federal government—specifically the Federal Aviation Administration (FAA). On December 17, 2015, the FAA’s Office of the Chief Counsel released a Fact Sheet addressing issues of Federal preemption of state and local drone regulations.  According to the fact sheet, the FAA is broadly empowered by Congress to regulate “matters pertaining to aviation safety.” More specific to drone use, the FAA Modernization and Reform Act of 2012 directs the FAA to establish  requirements for safe operations of drones posing little or no public risk or threat to the national airspace system.  The FAA has required the registration of drones which it claims is consistent with its authority under the law.  Because the FAA’s registration is required for operating a drone in navigable airspace, “no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval.”

A recent New York Times article suggests that the FAA’s preemption arguments may not deter state legislators, including Senator Gaines (R-El Dorado), from continuing efforts to regulate drones at the state level.

Notwithstanding the FAA’s position, we think that the preemptive effect of federal drone regulation will be limited, especially to the extent that local regulations are directed at issues not within the FAA’s purview, such as privacy, security (including law enforcement), and land use (including trespass and zoning). In any event, it is growing increasingly clear that states and local governments are disinclined to wait for the FAA to regulate drone use.

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AMA Encourages Members to “Hold Off Registering Model Aircraft”

On December 16, 2015 the Academy of Model Aeronautics (AMA) Executive Council approved a plan to challenge the FAA’s recently announced drone registration program.  Although the AMA was one of the groups invited to participate in crafting the registration plan, they are unhappy with the results.  As part of their challenge, they are encouraging members to refrain from registering their aircraft for the time being.  Specifically, the plan suggests “AMA members hold off on registering their model aircraft with the FAA until advised by the AMA or until February 19, the FAA’s legal deadline for registering existing model aircraft.”

At the core of their dispute the AMA questions whether the FAA has the legal authority to require registration or otherwise regulate model aircraft.  The FAA took the position that model aircraft are ‘aircraft’ it has statutory authority to regulate, and thus require registration of UAVs under the Section 336 of the FAA Modernization and Reform Act of 2012.  However the AMA contends such authority is limited by the same act, otherwise known as the “Special Rule for Model Aircraft.”  Shortly after the FAA issued its interpretation of Section 336 and announced its intent to regulate model aircraft, the AMA filed a petition with the U.S. Court of Appeals for the District of Columbia which is pending.  In its petition, the AMA is specifically challenging the FAA order “Interpretation of the Special Rule for Model Aircraft.” 79 Fed.Reg. 36,172 (June 25, 2014) and seeking a court order to rescind.  The core of the petition is whether or not “model aircraft,” including small UAVs or drones, are “aircraft” subject to FAA jurisdiction to regulate.

In its zeal to invoke a plan to register UAVs in time for the 2015 holiday season, the registration rules leave many unanswered questions.  At a minimum, the registration requirement may also be challenged as an overreach by the FAA because the agency failed to follow public notice and comment procedures ordinarily required before final adoption of federal regulations.  If model aircraft are determined to be ‘aircraft’ subject to registration requirements, can the same be said for model or hobby rockets or unmanned experimental balloons?  Will hobbyists in those areas also find themselves subject to registration?

To be clear, the AMA does not oppose registration of drones per se, but does object to FAA registration that is duplicative of association rules.  The AMA also objects to the broad definition promulgated by the FAA as to what constitutes a model aircraft subject to regulation.

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Is Your Drone Naughty or Nice? The FAA Begins Drone Registry Requirement on December 21

The FAA today announced the launch of its consumer drone registry program. Here is a FAQ the FAA has posted about the program. The program requires registration of all drones greater than .5 pounds, whether flown for commercial or recreational purposes. All new drone owners must register beginning on December 21, 2015—people who already own a drone have until February 20, 2016 to register. A $5 registration fee is waived for those who register before January 20, 2016. A preliminary review of the program indicates it to be quite expansive. Upon registration, all drone owners must attach a unique registration number to the drone and carry a registration certificate—in either hard or electronic form—when operating a drone.

The new registration requirements raise a number of legal questions. These range from the general, including whether the FAA even has the authority to require such mandatory registration at all, or if it may do so without a more formal public comment process, to the specific, including whether and how non-citizens will register—under the present guidelines, neither are subject to the registration requirement as the FAA only claims authority to register drones belonging to US citizens and permanent residents.

Failing to register as required can result in civil penalties of up to $27,500. However, Michael Whitaker, deputy FAA administrator has stated that “the goal is not to be punitive, but to get people into compliance with the regulations.”

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The FAA Rushes Recommendations Ahead of Christmas Shopping Season

On November 21, an FAA task force made up of representatives of manufacturers, pilots, government officials, and other technologists released its recommendations for how to monitor recreational use of drones—as distinguished from commercial users. The FAA had given the task force only four weeks to prepare its recommendations, hoping to act on them in time to apply to what is anticipated to be a huge Christmas drone-shopping season.

The recommendations include a registration process for all recreational users, with the resulting creation of a national database of drones. Such a database could be key in efforts to link a drone to its operator. Enforcing drone restrictions now is very difficult as it can be impossible to find the operator when an anonymous drone is mis-used. The registration requirements would be augmented by a requirement that each drone display its registration number. In a controversial move objected to by some toy manufacturers, the task force recommended that the registration rule apply to any drone weighing over 250 grams (a little more than half a pound). This would include most drones used by hobbyists. The task force did not recommend measures suggested by privacy advocates that all drones broadcast registration information by way of a transponder

Next steps are for the FAA to consider and adopt/modify/reject the recommendations. A key decision for the FAA will be how to enforce the registration requirement. The task force recommended a “reasonable and proportionate penalty schedule” less than the $25,000 maximum that presently applies to aircraft registration violations. In order for the registration requirement to have any teeth, a sizable penalty will be necessary to achieve any kind of deterrent effect.

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FAA Names Members of UAS Registration Task Force and Seeks Public Input on Proposed UAS Registration Framework

The FAA announced the members of its UAS Registration Task Force. The 26 member task force will be chaired by the Director of the FAA’s UAS Integration Office, Earl Lawrence and GoogleX’s, Dave Vos. Members include representatives from industry, law enforcement organizations, consumer groups, aviation officials’ organizations, and pilots’ associations.

The FAA recently announced the formation of the task force to develop recommendations for expanding the registration of drones as part of an effort to ensure that small drones are used safely. In a document titled “Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS,” the FAA noted that pilots have reported twice as many drone sightings in this year as compared to 2014. Pilots report drones as high as 10,000 feet and as close as half a mile from runways. The FAA also observed that drone use near wildfires has interfered with the work of emergency responders.

The FAA anticipates 1 million new drones will be purchased this holiday season and it is concerned that instances of illegal and unsafe drone use will become more and more frequent. While the FAA has exercised discretion related to the registration of drones in the past, it is considering changing course by requiring greater compliance from drone operators with federal law prohibiting the operation of unregistered aircraft.

The taskforce is charged with forming recommendations related to drone registration. The taskforce will also consider whether the FAA should continue to exclude certain drones from registration based on weight and performance limitations.

In keeping with the creation of the rapid-response task force to develop a process for registration of UAS, the FAA asked for public input regarding relevant rulemaking.  The FAA would like all input by November 6, 2015.  Interested persons may comment online or via traditional methods.

In its request, the FAA identified 10 questions for which it seeks public comment:

  1. What methods are available for identifying individual products? Does every UAS sold have an individual serial number? Is there another method for identifying individual products sold without serial numbers or those built from kits?
  2. At what point should registration occur (e.g. point-of-sale or prior-to-operation)? How should transfers of ownership be addressed in registration?
  3. If registration occurs at point-of-sale, who should be responsible for submission of the data? What burdens would be placed on vendors of UAS if DOT required registration to occur at point-of-sale? What are the advantages of a point-of-sale approach relative to a prior-to-operation approach?
  4. Consistent with past practice of discretion, should certain UAS be excluded from registration based on performance capabilities or other characteristics that could be associated with safety risk, such as weight, speed, altitude operating limitations, duration of flight? If so, please submit information or data to help support the suggestions, and whether any other criteria should be considered.
  5. How should a registration process be designed to minimize burdens and best protect innovation and encourage growth in the UAS industry?
  6. Should the registration be electronic or web-based? Are there existing tools that could support an electronic registration process?
  7. What type of information should be collected during the registration process to positively identify the aircraft owner and aircraft?
  8. How should the registration data be stored? Who should have access to the registration data? How should the data be used?
  9. Should a registration fee be collected and if so, how will the registration fee be collected if registration occurs at point-of-sale? Are there payment services that can be leveraged to assist (e.g. PayPal)?
  10. Are there additional means beyond aircraft registration to encourage accountability and responsible use of UAS?

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Steve Miller on KPCC to Discuss New Federal Drone Regulations

Join our own Steve Miller as he discusses proposed requirements for hobbyists to register their drones.

“You’re going to need to register that drone: Federal government announces new regulations”

(Listen online, starting 11:15 AM Pacific. Or listen to the recording.)

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FAA Creates New Task Force to Study Non-Commercial Drone Registration

The Federal Aviation Administration announced today that it was creating a task force to develop recommendations for a registration process for all consumer drones—even those flown by hobbyists and therefore not subject to proposed rules governing commercial use of drones.  This action is recognition that the distinction between commercial and non-commercial use may not make a difference in achieving safety and security goals.   The task force is expected to provide a report by Thanksgiving.

It is not at all clear how the registration process will work.  Will there be exemptions for small or lightweight drones, or drones that are incapable of flying above a certain height?  Will the registration requirements apply retroactively?  What about drones that are not purchased fully functional, but are assembled by hobbyists from separate parts?  Finally, absent legislative or regulatory action, will the FAA actually be able to implement any recommendations proposed by the task force?

More fundamentally, requiring hobbyists to  register a drone may not address operational restrictions that continue to emphasize the difference between commercial and hobbyist use.   Non-commercial use is still going to be largely free from restrictions such as geographical restrictions, speed or height restrictions, and other regulations that address potentially unsafe operation.

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Commercial v. Non-Commercial Drone Use

Pursuant to federal law, the FAA may regulate commercial drone use, but does not, with certain limited exceptions, have the authority to regulate recreational use of drones by hobbyists.  The distinction can be frustrating, and may have little relevance to those looking to promote safety.  What  difference does it make, from a safety perspective, whether a drone is being flown for commercial or non commercial purposes?

The Golden Gate Bridge, Highway and Transportation District has highlighted this issue in a letter it has posted to the FAA’s docket for its proposed rule on commercial drones.

In the letter, the Golden Gate Bridge accurately points out that a drone taking pictures of security-sensitive areas of the Bridge poses a security threat regardless of whether the operator is being paid—indeed, non-commercial use may have more pernicious intent. Here’s an article about issues concerning drone use near the Golden Gate Bridge.

The distinction between commercial and non-commercial use may be one without a difference in some respects. The FAA has recently taken the position that a hobbyist’s video taken from a drone may nonetheless constitute commercial use subject to FAA regulation if the video is posted to YouTube, because the YouTube website includes advertisements.  This broad interpretation of “commercial use” could have significant implications if the FAA begins to regulate drone use that may have started out as recreational, but that it asserts became commercial only because it was posted on the internet.   What if a hobbyist posts a video to a website that does not include ads, but is then linked to another website that includes advertisements?  Do drone users have First Amendment rights to video taken by a drone-mounted camera and are those rights implicated by any government attempt to regulate the video after-the-fact?

Another reason why it is so important to establish the boundaries of the FAA’s jurisdiction is that if the FAA can not regulate commercial drone use, then States and local municipalities and agencies likely can, without raising issues of federal preemption.  But if the FAA asserts jurisdiction over drone use simply because video ends up on a website containing advertising, then local regulation may be limited—local agencies will have to rely on reasons other than safety as a basis for regulating drone use.

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FAA Sued Over Failure to Propose Privacy Rules Related to Commercial Drone Use

On Tuesday, March 31, 2015, the Electronic Privacy Information Center (“EPIC”) filed a petition for review of the FAA’s decision not to address privacy issues in their proposed regulation on commercial drone use.

In 2012, EPIC sent a letter to the FAA highlighting the threat posed to privacy and civil liberties by both commercial and government use of drones. The letter discussed use of drones by the Bureau of Customs and Border Protection and local law enforcement agencies. EPIC also suggested that privacy is threatened by commercial use of drones. EPIC observed the development of “paparazzi drones” as well as increased drone use by private detectives. In part, EPIC requested that the FAA “examine and report on the impact on privacy to individuals within the scope of their comprehensive plan to safely integrate civil drones into the national airspace.”

Under the criteria laid out in 14 CFR § 11.73 for consideration of a petition for rulemaking, the FAA denied EPIC’s request because the issue was not “an immediate safety concern.” Additionally, the FAA noted that it “has begun a rulemaking addressing civil operation of small unmanned aircraft systems in the national airspace system” and EPIC’s comments would be considered in that effort. As noted in our February 17, 2015 post, the proposed rule is silent on the issue of privacy but, on the same day the proposed rule was released, the President issued a memorandum which requires the National Telecommunications & Information Administration to create voluntary rules for privacy, accountability, and transparency in commercial drone use.

EPIC’s petition asks the court to review the FAA’s denial of the request for rulemaking. EPIC also requests the court set aside the FAA’s proposed rule on commercial drone use for its failure to propose drone privacy rules and remand to the agency.


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FAA Approves Amazon Drone Delivery Test

Today, in a move that could fundamentally alter the future of commercial drone use in the United States, the FAA granted Amazon limited permission to begin testing its drone delivery service, Amazon Prime Air.  The FAA’s permission, expressed in the form of an “experimental airworthiness certificate” is notable for the limits it imposes.  First, Amazon may begin testing drones only in an isolated parcel of property in rural Washington State.  Amazon may only fly drones below 400 feet, only during daylight hours, and only within the line of sight of the operator.  The drone must be operated by a pilot with a certificate to fly a private manned aircraft. Amazon must report to the FAA each month,  providing the number of flights conducted, pilot duty time per flight, unusual hardware or software malfunctions, any deviations from air traffic controllers’ instructions, and any unintended loss of communication links.

Nevertheless, Amazon is the 600 pound gorilla in the commercial drone industry.  Its commencement of testing—even as the FAA is in the midst of the public comment period for its proposed Rule on commercial drone use—signals that drone delivery is coming to an airspace near you.  The only question is when.

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FAA Issues New Proposed Rule on Commercial Drone Use

In what will certainly shape the future of commercial drone use in the United States, the FAA over the weekend issued its long awaited proposed rule on commercial drone use (PDF).  Here’s a link to the proposed rulemaking.

Here’s a link to a summary of the proposed rule: www.faa.gov/regulations_policies/ rulemaking/media/021515_sUAS_Summary.pdf

Following are a few of the operational limitations on commercial drone use proposed by the FAA:

  • Drones must be under 55 pounds
  • Flights must take place during daylight hours
  • Flights must take place within visual line of sight of the operator
  • Operators may work with a visual observer, but the operator still must be able to maintain visual line of sight
  • The drone must be registered and aircraft markings are required
  • Operators must be 17 years old, pass an aeronautical knowledge test, hold an FAA UAS operator certificate, and pass a TSA background check
  • Aeronautical knowledge testing must be renewed every 24 months (no private pilot license or medical rating would be required)
  • Operators must ensure their aircraft is safe for flight, but there are no burdensome airworthiness standards or certification requirements (a preflight inspection conducted by the operator, checking communications links and equipment will be sufficient)
  • Operators must report an accident to the FAA within 10 days of any operation that results in injury or property damage
  • No operations are allowed in Class A (18,000 feet & above) airspace. Operations in Class B, C, D and E airspace are allowed with the required ATC permission, Operations in Class G airspace are allowed without ATC permission
  • The new rules will not apply to model aircraft if those operators continue to satisfy all of the criteria specified in Sec. 336 of Public Law 112-95, including the stipulation that they be operated only for hobby or recreational purposes
  • The proposed rule maintains the existing prohibition against operating in a careless or reckless manner. It also would bar an operator from allowing any object to be dropped from the UAS

The proposed rule will now go through a lengthy public comment period.  It is not expected that a final rule will be issued before 2017.

As expected, the new proposed rule focus on safety and security.  Some implications of the new proposed rule:  First, the limitation on remote operation would seemingly prohibit any use of drones for delivery — for instance by Amazon.  This limitation also effectively limits the kinds of apps that might be developed to control drones through a smart phone.

Second, the proposed rule is silent on the all-important issue of privacy with regard to commercial drone use.  Senator Ed Markey (D-Mass.) said the order was insufficient and that he would introduce legislation requiring stronger privacy rules. “It stops short of ensuring that the strongest safeguards are in place to protect privacy and promote transparency,” Markey said. “The FAA order merely directs NTIA to come up with a voluntary framework for privacy for commercial drone use. We need strong, enforceable rules for both commercial and government activities that require transparency about the collection, use, and retention of data collected by drones before they take flight.”  Absent any federal legislation, State and local laws will be needed to clarify the privacy implications of increased drone use, including any warrant requirements.

However, President Obama issued an executive order that accompanied the new FAA proposed rules. The President’s executive order — officially a Presidential memorandum titled “Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems” — requires federal agencies to implement guidelines and publicize policies by February 15, 2016.  Such guidelines and policies must be updated every three years.  These policies apply only to use of drones by government and do not directly impact commercial drone use.  With regard to private commercial use of drones, the Presidential Memorandum requires that the Department of Commerce’s, National Telecommunications & Information Administration (NTIA) begin a process for creating privacy, accountability and transparency rules for commercial and private uses of drones.  Any such rules will take at least a year to develop — perhaps longer — and will be voluntary.

The FAA Rulemaking process is likely to elicit considerable comment and attention from the drone industry.  Notwithstanding the importance of the federal regulations governing safety and security, there are still large legal gaps that remain to be filled by State and local legislators and regulators.

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Justice Brennan’s Prophetic Dissent in Florida v. Riley

In Florida v. Riley (488 U.S. 445), decided in 1989, the United States Supreme Court held that the Fourth Amendment did not require law enforcement to obtain a warrant before conducing surveillance from a helicopter hovering 400 feet above the ground.  Here is an excerpt from Justice Brennan’s dissent, which is not only prophetic, but makes one amazed at the rapid progress of technology that has given rise to the increased use of commercial drones:

Imagine a helicopter capable of hovering just above an enclosed courtyard or patio without generating any noise, wind, or dust at all—and, for good measure, without posing any threat of injury. Suppose the police employed this miraculous tool to discover not only what crops people were growing in their greenhouses, but also what books they were reading and who their dinner guests were. Suppose, finally, that the FAA regulations remained unchanged, so that the police were undeniably “where they had a right to be.” Would today’s plurality continue to assert that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” was not infringed by such surveillance? Yet that is the logical consequence of the plurality’s rule . . . . (Florida v. Riley, 488 U.S. 445, 462-63)

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Drone Insurance

Among the many novel legal questions presented by drone use in California is whether and to what extent insurance coverage will apply.  Homeowner insurance may cover the amateur use so long as no commercial activity is involved.

Numerous companies advertise coverage for commercial drone use.  But the Federal Aviation Administration (FAA) current position is that all commercial drone use is subject to its jurisdiction. A drone operator that does not have a formal grant of authority from the FAA—to date the FAA has granted only 11 of what are called “Section 333 Exemptions” to commercial drone operators—is acting in the gray area between what is unauthorized and what is illegal.  Obtaining insurance under such circumstances may be expensive, and a commercial drone operator who does not have a Section 333 Exemption may not have complete comfort that insurance recovery will be available when needed.

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Congressional Hearing on Commercial Drone Regulations

Here’s a link to the December 10, 2014 hearing of the House Transportation and Infrastructure Committee hearing on the status of UAS integration, oversight and competitiveness.

Congress as well as industry leaders are clearly getting frustrated with the speed of FAA action in implementing regulations governing commercial drone use.

As I emphasize in a number of posts on this site, neither industry nor local government are waiting for the FAA.  State and local regulations are where the legal action will be for at least the next year or two.

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